Date: 20041102
Docket: IMM-1582-04
Citation: 2004 FC 1544
Ottawa, Ontario, the 2nd day of November 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
JOSE LUIS MOBARAK ROSALES
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Rosales, a native of Mexico, arrived in Canada in December 2002. He based his application for asylum on his sexual preference: he is a homosexual. He said he had always lived with a traditional Mexican family in a country and culture which does not readily accept differences. His father, who was humiliated by the situation, beat him and threw him out. The applicant suffered mistreatment at school, in the form of mockery and insults, for several years.
[2] Once he had completed his secondary schooling, he moved from Tehuacan to Puebla to complete his preparatory studies.
[3] After his three years in Puebla, and having completed his preparatory studies, he wanted to go back to Tehuacan to see his mother, whom he missed. For some time, until 2002, he did not have major problems. In February, the applicant began going out with a close friend who was the son of a very prominent man in the community.
[4] The applicant alleged that his father contacted his close friend's father. The latter prohibited the two men from seeing each other and later confronted the applicant in person, telling him he would kill him. A few weeks later, when the applicant was leaving home, he said he was accosted by two men who beat him and told him if he did not leave he would soon be dead.
[5] Following that incident, the applicant received a call from his mother telling him that his father had just been beaten by the police, who were looking for the applicant. The applicant hid with another family member for a few weeks before leaving for Canada.
IMPUGNED DECISION
[6] After analyzing the evidence, the panel concluded that the applicant and his allegations lacked credibility.
[7] In his testimony, the applicant described verbal assaults and being pushed, jostled and insulted on the street. However, the panel was amazed to find that when he was at work in the evenings the applicant encountered no problems and was not in any way harassed.
[8] Although he alleged that he received death threats, the applicant still continued living in Tehuacan and took no steps to move elsewhere in his country.
[9] The applicant testified he went back to Tehuacan to be closer to his mother. However, the panel was surprised by this part of his testimony for as soon as he arrived he took steps to come to Canada.
POINT AT ISSUE
[10] Did the Refugee Protection Division render a decision based on an erroneous finding of fact and/or law that it made in a perverse or capricious manner or without regard for the material before it?
APPLICANT'S ARGUMENTS
[11] The applicant submitted that the panel delivered a decision vitiated by several errors. It made findings of fact contrary to the evidence.
RESPONDENT'S ARGUMENTS
[12] The respondent considered that the panel had not acted in a patently unreasonable way. Further, as the panel was the only entity which saw and heard the applicant, its assessment of the latter's testimony should be treated with the greatest restraint. The respondent relied on Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No 732 (C.A.) (QL).
[13] The respondent further submitted that if the applicant had found contradictions, he should have told the panel about them through his counsel at the hearing.
ANALYSIS
[14] The panel gave a very short analysis, vitiated by error.
[15] It is clear from reading the transcript of oral testimony that the applicant never said he worked in the evenings and had no problems.
[16] It is further clear from reading the transcript that the panel mistook the relevant dates between Mr. Rosales' return to Tehuacan to see his mother and his arrival in Canada. It is hard to understand how the panel interpreted seven years as being "immediately after his arrival". Mr. Rosales returned to Tehuacan in 1995 and then left for Canada in 2002.
[17] In view of the foregoing mistakes, the panel made findings of fact without regard for the material before it.
[18] Additionally, the panel made an error when it found that Mr. Rosales had an internal flight alterative (IFA), without indicating what alternative it had in mind. The panel simply indicated in its decision that "the claimant had still continued to live in Tehuacan and had made no effort to live elsewhere in his country". It is therefore impossible for this Court to know whether the panel even considered the internal flight alternative.
[19] According to the documentary evidence submitted to the Court, and in particular the document Question & Answer Series Mexico: Update on Treatment of Homosexuals, page 30 states: "There are three types of groups for whom internal relocation would be difficult, if not impossible. One is effeminate men . . .".
[20] As the question of an internal flight alternative is a finding of fact, and it is impossible both for the Court to substitute its decision for that of the panel and for it to take judicial notice of the situation in Mexico, it must necessarily conclude that the panel made findings of fact without regard for the material before it.
ORDER
The Court orders that the application for judicial review be allowed. The Board's decision is dismissed and the matter referred back to a panel of different members for re-hearing and a new ruling on the case. No serious question of general importance was certified.
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"Sean Harrington"
Judge
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Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1582-04
STYLE OF CAUSE: JOSE LUIS MOBARAK ROSALES
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 26, 2004
REASONS FOR ORDER
AND ORDER BY: HARRINGTON J.
DATED: NOVEMBER 2, 2004
APPEARANCES:
Michelle Langelier FOR THE APPLICANT
Simone Truong FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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